Saturday, February 6, 2016

Bulletin: National Registry of Exonerations Report: (Part Four); Grits for Breakfast provides a perspective from Texas: "Unmaking Murders, and other exoneration stories." (The post ends with a very bizarre exoneration. (Calvin Day); It's the stuff of fiction - but all too real! HL)!


"Your correspondent was briefly quoted in the Dallas News' coverage of the latest annual report from the National Exoneration Registry, available here. Texas saw 54 exonerations in 2015, 42 of which were drug cases from Harris County. Addressing the drug exonerations, the registry report asked the obvious question: Why did these defendants plead guilty?  Inger Chandler offers two explanations: some probably thought the pills or powders they were carrying contained illegal drugs when in fact they didn’t; others — especially defendants with criminal records, who generally cannot post the comparatively high bails that are set for them and who risk substantial terms in prison if convicted — agreed to attractive plea bargains at their initial court appearances, despite their innocence, rather than remain in pretrial custody and risk years in prison.  There is some evidence that pretrial detention and the fear of long terms of imprisonment did influence these false guilty pleas. Twenty of the 25 Harris County drug exonerees who pled guilty to significant terms of imprisonment (3 months to 7 years) had felony records that we know about, while 15 of the 23 who had no known criminal records got no time in jail at all. In 41 of the 73 drug crime exonerations in Harris County the defendants were arrested on the basis of “field tests” that indicated the presence of controlled substances. (In the other cases the arresting officers mistook an innocent white powder for cocaine, a hand-rolled cigarette for marijuana or non-prescription pills for controlled drugs.)  Commonly-used drug field tests are  notoriously unreliable; they routinely misidentify everything from Jolly Ranchers to chalk to motor oil as illegal drugs. They are inadmissible as evidence in court but sufficient to justify an arrest and they may convince an innocent defendant that she is bound to be convicted at trial. The 149 exoneration cases nationally, as a whole, include more cases than any previous year in which:  Defendants falsely confessed; Government officials committed misconduct; The convictions were based on guilty pleas;   No-crime fact occurred;  A prosecutorial Conviction Integrity Unit worked on the exoneration The first Conviction Integrity Unit was in Dallas and Texas now has one in each of its five largest counties, with Harris County currently the most active. The rise of Conviction Integrity Units is a big reason the number of exonerations keeps rising in Texas and nationally. Exonerations historically have been proven by lone-wolf attorneys, journalists, or lay investigators against overwhelming odds. When DAs put their institutional weight behind these efforts and facilitate exonerations instead of obstruct them, they tend to happen with greater alacrity..........Finally, it's worth pointing out one of the final Texas' exonerations of 2015, that of Calvin Day in Bexar County, a doctor charged with sexually assaulting patients in his office. According to the registry's summary of his case, Day passed a polygraph related to allegations that he had extramarital relations with then-elected DA Susan Reed. In response, her First Assistant Cliff Herberg essentially threatened the defense attorneys who in turn did not aggressively interrogate the key witness against their client. (See related Grits coverage.) In open court in December when Day's case was dismissed, the trial judge accused Reed and her first assistant of "inappropriate" conduct. In this instance, the case falling apart may have less to do with Day's lack of culpability than the state's bungling. He still faces criminal charges related to an alleged assault on a different patient."

http://gritsforbreakfast.blogspot.ca/2016/02/unmaking-murders-and-other-exoneration.html

Friday, February 5, 2016

Bulletin: National Registry of Exonerations Report: : (Part Three); 'No crimes'. "There have been 22 exonerations since 1989 in which defendants were cleared because new scientific evidence had undermined earlier findings of arson – 8 arson convictions and 14 arson-murder convictions. The pace seems to be picking up. Half of the no-arson exonerations have been in the last four years, and nearly a quarter (5 of 22) in 2015 alone – again a record."

 
"No-crime cases: A record 75 exonerations in 2015 were cases in which we now know that no crime actually occurred, half of the total (75/149). As with guilty-plea exonerations, most crime exonerations were drug-possession cases (48/74) which we will get to below. Here we will discuss the six exonerations that involved homicide convictions in cases in which no crime occurred, also a record number. Five of the six no-crime homicide exonerations were arson-murder convictions in which advances in science demonstrated that the original evidence that the fire was arson proved nothing. For example:  In 1981, Raymond Mora, William Vasquez and Amaury Villalobo were convicted on six counts of murder each for setting a fire in Brooklyn that killed a mother and her five children. The evidence against them consisted of testimony from a fire marshal that the  fire had multiple points of origin and was started with accelerants, and from the building’s owner that she saw the defendants leave the building just before the fire exploded. In 2015, lawyers for the defendants presented evidence to the Brooklyn District Attorney’s office that fire scientists now know that the evidence the fire marshal relied on does not prove arson. The Brooklyn DA’s conviction integrity unit picked up the investigation and learned that the building’s owner had admitted she lied when she testified that she saw the defendants at the fire. In December of last year the DA’s office mover to dismiss the charges.  In 1992 the National Fire Protection Association issued a major report, NFPA 921, Guide for Fire and Explosion. NFPA 921 marks a dividing line between arson investigations based on the personal experience of investgators and investigations based on scientific principles and data. All five of the 2015 no-crime exonerations in arson-murder cases were for convictions that occurred 25 to 34 years earlier, before NFPA 921. It’s  taken some time  for the major changes brought about by NFPA 921 to persuade courts to reconsider arson findings that are unsupported by scientific evidence. There have been 22 exonerations since 1989 in which defendants were cleared because new scientific evidence had undermined earlier findings of arson – 8 arson convictions and 14 arson-murder convictions. The pace seems to be picking up.  Half of the no-arson exonerations have been in the last four years, and nearly a quarter (5 of 22) in 2015 alone – again a record."
http://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2015.pdf

Thursday, February 4, 2016

Motherisk; Vice News: "This Canadian Lab Spent 20 Years Ruining Lives." (Must, Must Read by Tess Owen. HL); "Marchand feels like Motherisk's failings were shielded by the credibility of SickKids and finds it hard to believe they didn't know what was going on. She says that, when the quantity of alcohol cited in her test was so extreme, that should have been a red flag. "They just never believe us," Marchand says. "They tell the public to have confidence, and so they do. It's a big mess.""


STORY: "Motherisk: This Canadian lab spent 20 years ruining lives," a beautifully written, insightful  piece by reporter Tess Owen, published by 'Vice' on February 4, 2016.

GIST:  "Four years ago, Yvonne Marchand lost custody of her daughter.  Even though child services found no proof that she was a negligent parent, that didn't count for much against the overwhelmingly positive results from a hair test. The lab results said she was abusing alcohol on a regular basis and in enormous quantities. The test results had all the trappings of credible forensic science, and was presented by a technician from the Motherisk Drug Testing Laboratory at Toronto's Sick Kids Hospital, Canada's foremost children's hospital. "I told them they were wrong, but they didn't believe me. Nobody would listen," Marchand recalls. Motherisk hair test results indicated that Marchand had been downing 48 drinks a day, for 90 days. "If you do the math, I would have died drinking that much" Marchand says. "There's no way I could function." The court disagreed, and determined Marchand was unfit to have custody of her daughter. "It's just so sad" Marchand says, remembering that day. "I don't even know how to describe the feeling. I wouldn't wish it on anybody – it's a terrible thing to go through." As it turns out, Marchand wasn't alone. For over a decade, scores of Canadians received unsound hair test results from Motherisk. Their tests were used in some 16,000 child protection cases as well as six criminal cases that culminated in convictions, although it's unclear how many of those tests were faulty.......... Some parents, like Marchand, pursued additional hair tests from independent labs in a bid to fight their cases. Marchand's second test showed up as negative. But, because the lab technician couldn't testify as an expert witness, the second test was thrown out by the court. Marchand says the entire process was very frustrating. She says someone should have noticed a pattern when parents repeatedly presented hair test results from independent labs which completely contradicted Motherisk results. Alarm bells should have gone off sooner. Marchand's tests — the ones that showed her drinking a staggering amount of alcohol each day — came after a protracted child custody battle between Marchand and her former partner led to him filing numerous reports with Ontario's child protection agency, claiming she was an alcoholic and unfit to be a mother. He called the agency five times in total. The first four times, the agency found his allegations unsubstantiated. When he called a fifth time, the agency sent Marchand to Motherisk to have a hair tested......... Justice Lang's findings have thrown the foster care system and child protection services into total disarray. On Monday, the Ontario Association of Children's Aid Societies announced that up to 300 adoption cases were being put on hold while those cases are reviewed, leaving adoptive parents, foster families and adoptees in limbo. Lang found that the lab was regularly relying on enzyme-linked immunosorbent assay (ELISA) test results — those tests, however, are primarily for screening. It can tell you if a hair sample is negative, but it can't tell you if a hair sample is positive. To determine if a sample is positive, you have to carry out a second test using another method. According to the review, Motherisk communicated all 'maybe' results as 'positives' to their clients from child protection agencies, instead of carrying out a follow up test. "No forensic toxicology laboratory in the world uses ELISA testing the way MTDL [Motherisk] did," the report states..........Marchand feels like Motherisk's failings were shielded by the credibility of SickKids and finds it hard to believe they didn't know what was going on. She says that, when the quantity of alcohol cited in her test was so extreme, that should have been a red flag. "They just never believe us," Marchand says. "They tell the public to have confidence, and so they do. It's a big mess.""

The entire story can be found at:

https://news.vice.com/article/this-canadian-lab-spent-20-years-ruining-lives

PUBLISHER'S NOTE: 
 
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
 
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located  near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.

The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: 
 
http://www.thestar.com/topic/charlessmith
 
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.html

Harold Levy: Publisher;

Bulletin: Adnan Syed: Maryland; 'Serial' subject has day in court; His case for a new trial includes "newly scrutinized cellphone tower evidence." ..."In addition to McClain, Syed's attorneys said they would raise questions about cellphone evidence that linked Syed to the area where Lee was buried. The state plans to counter with an FBI cellphone expert." Reporter Justin Fenton: Baltimore Sun;


"'Serial' podcast subject Adnan Syed is in a Baltimore court house Wednesday, his attorney seeking a new trial. For more than a decade, Asia McClain was confident that she had seen Adnan Syed at a Woodlawn library during the time when prosecutors said he had killed his former girlfriend. Defense attorneys never asked about her account, she said, and a prosecutor later dismissed the potential alibi as irrelevant. But before a packed courtroom on Wednesday, McClain described how a popular podcast about the case had persuaded her that she needed to speak up. "In order for justice to be served, all information has to be out on the table," McClain testified in Baltimore Circuit Court. It was the first day of a three-day hearing. Syed's attorneys argued Wednesday that he should receive a new trial in the 1999 murder of his ex-girlfriend and Woodlawn High School classmate Hae Min Lee. The hearing was the first since the "Serial" podcast raised questions about Syed's conviction.........Syed's attorneys say McClain's account should not have been dismissed. They say her testimony and newly scrutinized cellphone tower evidence provide grounds for a new trial......... Vignarajah said in his opening remarks that the trial prosecutors presented overwhelming evidence, including forensics and evidence that pointed to a motive of Syed being possessive of Lee. In addition to McClain, Syed's attorneys said they would raise questions about cellphone evidence that linked Syed to the area where Lee was buried. The state plans to counter with an FBI cellphone expert. It is not known whether Welch will issue his ruling at the conclusion of the hearing or at a later date."
http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-syed-hearing-day-one-20160203-story.html

Bite-mark evidence: Consumate criminal justice blogger Radley Balko presents "The latest from the world of bite mark evidence" in his Washington Post column "The Watch" - including a case where a defence lawyer is relying on the disputed evidence: "On the one hand, if prosecutors are going to continue to use bite mark testimony, it doesn’t make much sense to ask defense attorneys to unilaterally disarm. On the other hand, it’s hard to see how a defense attorney could ethically submit evidence he or she knows is fraudulent. I obviously have no idea if the defense attorneys in this case honestly believe that bite mark analysis is scientifically valid. But they shouldn’t get any more deference than prosecutors. This case also is by no means the first time defense attorneys have tried to rely on bite mark analysis. In some ways, it seems worse when prosecutors deploy transparently bogus evidence because their obligation is to seek justice, not to win convictions at any cost. A defense attorney’s job is to vigorously defend his or her client, within a few basic ethical boundaries. The real problem is that we’ve entrusted judges to be the gatekeepers of science in the courtroom, and they’ve fulfilled that function about as well as you might expect from people trained in law, not science — pretty poorly. This sort of evidence ought to be rejected no matter which side is trying to introduce it." (Must Read. HL);

POST: "The latest from the world of bite mark evidence," by Radley Balko, published by The Washington Post, on February 1, 2016.

GIST: "There have been some new developments and stories regarding the dubious forensic specialty of bite mark matching.".........The little scientific research that has been done on bite mark analysis so far has cast doubt on the field’s core assumptions. So it would be best to just exclude it altogether. Judge Wahwassuck apparently doesn’t see it that way. Unfortunately, thus far, neither has any other judge in the country who has been asked to rule on the question directly."......... The final bite mark story comes from Louisiana, where defense attorneys are invoking bite mark analysis in attempt to vindicate their client. DNA testing has apparently implicated a man named Joenell Rubin in a 27-year-old murder that had gone cold. But Rubin’s defense team found an old letter from a forensic specialist claiming that bite marks found on the victim were administered by someone other than Rubin. So here we have defense attorneys doing what prosecutors are doing in Ohio — asking a court to embrace bite mark evidence even in the face of DNA evidence (although in the form of a very old letter that can’t be cross examined). On the one hand, if prosecutors are going to continue to use bite mark testimony, it doesn’t make much sense to ask defense attorneys to unilaterally disarm. On the other hand, it’s hard to see how a defense attorney could ethically submit evidence he or she knows is fraudulent. I obviously have no idea if the defense attorneys in this case honestly believe that bite mark analysis is scientifically valid. But they shouldn’t get any more deference than prosecutors. This case also is by no means the first time defense attorneys have tried to rely on bite mark analysis. In some ways, it seems worse when prosecutors deploy transparently bogus evidence because their obligation is to seek justice, not to win convictions at any cost. A defense attorney’s job is to vigorously defend his or her client, within a few basic ethical boundaries. The real problem is that we’ve entrusted judges to be the gatekeepers of science in the courtroom, and they’ve fulfilled that function about as well as you might expect from people trained in law, not science — pretty poorly. This sort of evidence ought to be rejected no matter which side is trying to introduce it."  Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."

The entire post can be found at:

https://www.washingtonpost.com/news/the-watch/wp/2016/02/01/the-latest-from-the-world-of-bite-mark-evidence/

PUBLISHER'S NOTE: 
 
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
 
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located  near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.

The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: 

 
http://www.thestar.com/topic/charlessmith

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
 
http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.html

Harold Levy: Publisher;

Bulletin: National Registry of Exonerations Report for 2015: (Part Two): False Confessions: A record year: "A record 27 exonerations in 2015 were convictions based on false confessions, and more than 80% of them were homicides. Twenty-two of the 27 false confession exonerations in 2015 were homicides – 39% of all homicide exonerations in 2015 – more than any previous year. Most of the homicide exonerees who falsely confessed were less than 18 years old or suffered from mental illness or intellectual disability or both (13/22)."

 
"False confessions: A record 27  exonerations in 2015 were convictions based on false confessions, and more than 80% of them were homicides. Twenty-two of the 27 false confession exonerations in 2015 were homicides – 39% of all homicide exonerations in 2015 – more than any previous year Most of the homicide exonerees who falsely confessed were less than 18 years old or suffered from mental illness or intellectual disability  or both (13/22). For example: In 2006, Bobby Johnson, a barely-literate 16-year-old with an IQ of 69, was interrogated by two New Haven, Connecticut detectives about the murder of Herbert Fields. The detectives told Johnson (falsely) that they had physical evidence tying him to the murder and that he would face the death penalty if convicted (also a lie).  They promised him probation if he confessed. Johnson did confess and was convicted and sentenced to 38 years. He was exonerated in 2015,  nine years later, after it was discovered that the police had concealed evidence that identified the real killer."
 http://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2015.pdf

Wednesday, February 3, 2016

Bulletin: 'Making a Murderer': More recent updates in the Steven Avery case provided by the Florida Innocence Project; "Most recently, Zellner revealed that advances in technology and forensic testing will help prove Avery’s innocence and that there may be other suspects in the case. (Defence lawyer) Zellner is doing everything she can to gather material that could help exonerate Avery, including buying the same RAV4 model that Teresa Halbach drove. She claims that within the next 30 days, new information will be presented in Avery’s appeal, so stay tuned."

 
"Earlier this month, IPF published a post to our blog detailing some recent updates surrounding the Avery family of the Netflix docuseries Making a Murderer. For those updates, click here. As the series continues to gain popularity, more recent updates regarding the cases also continue to come about. Avery continues to maintain his innocence in the murder of Teresa Halbach and is exhausting every legal option he can to prove his innocence to others. This includes filing another appeal on January 11, claiming that he was deprived of an impartial jury. A juror, who apparently felt Avery was guilty from the get-go, allegedly made several comments about Avery’s guilt to other jurors, which may have bullied them into convicting Avery. The appeal also claims that the search performed on the property that found incriminating evidence against Avery was done so illegally according to the limits of the search warrant. Although filing the appeal himself, Avery has now hired a new defense team. His new attorneys include Kathleen Zellner of Chicago and the Midwest Innocence Project’s legal director, Trishia Bushnell. Zellner, Chicago Lawyer magazine’s 2014 “Person of the Year,” is not a new name in the world of wrongful convictions. According to her website, the lawyer has helped exonerate 17 people, including well-known exoneree Ryan Ferguson of Missouri. Ferguson was convicted in 2005 for strangling to death Kent Heitholt, a Columbia Daily Tribune sports editor, and was exonerated in 2013. Zellner hopes to add Avery to her long list of exonerations. For fans that could not get enough of the series, there may be some hope.......... Avid supporters of Avery and Dassey planned protests in the hopes of getting them new trials. The protests were expected to draw attract around 200 people, with local and surrounding law enforcements preparing in case of violence. The protests took place on the morning of January 29, but only drew about 50 people—including both supporters and non-supporters—to the Manitowoc County Courthouse. Speaking of the local protests, one side that has barely been covered amidst all the media attention is that of Manitowoc County. The media has tended to focus solely on the cases of Avery and Dassey. Unsurprisingly, the release of Making a Murderer has taken a serious toll on the community. Manitowoc County’s tourism office, law enforcement agencies, City Hall, and Historical Society have all received angry comments and inquiries, whether by telephone, email, or social media. ........ Most recently, Zellner revealed that advances in technology and forensic testing will help prove Avery’s innocence and that there may be other suspects in the case. Zellner is doing everything she can to gather material that could help exonerate Avery, including buying the same RAV4 model that Teresa Halbach drove. She claims that within the next 30 days, new information will be presented in Avery’s appeal, so stay tuned."
http://floridainnocence.org/content/?p=12383